Dementia in custody: A historical and forensic approach

Introduction

Medical professionals working in correctional facilities or prisons are increasingly confronted with the problems of aged detainees, with health problems. Gerontology and geriatrics are relatively new subspecialties, and medical conditions accumulated over years may worsen when people are deprived of their liberty, especially when they are old.

We have raised before the issue of demented older adults who face civil tribunals in Albania for various reasons (wills, testamentary or contractual disagreements), with their decision-making ability questioned even posthumously. ¹ Adults with cognitive deficit (if not already suffering from diagnosed clinical dementia) might remain distant from the proceedings with the help of attorneys or legal representatives. However, not so in criminal proceedings. The uneasy situation is an intricate mess of “fact and law” – to borrow the judicial terminology – when even protective measures (such as Miranda rights) can be ineffective. ²

A brief history: from Pétain to Pinochet

History is defined by major events and precedents. With the definition of dementia and its treatment and clinical course having changed substantially during the last decade, it may be difficult to pinpoint the first time when a person with severe cognitive deficit faces an interrogation or trial.

History recommends prudence with famous cases usually linked to powerful individuals. The Marshal of France, Henri-Philippe Pétain, a glorious general of the First World War, took charge of the French government after France was invaded by Nazi Germany during World War II (WWII). ³ Having headed the collaborationist government of Vichy, he later underwent trial for treason. Charles de Gaulle commuted the death sentence of Pétain to life imprisonment, and as a general, de Gaulle never showed disrespect for his unlucky predecessor. ⁴ By the end of WWII, Pétain had been suffering from dementia for several years, perhaps even from before the war began. ⁵

Pétain perhaps realised he was losing his sharpness, as in one of his speeches (17 June 1940) he remarked: “Vous avez la mémoire courte.” Translated, this means you have a short memory.

While pretending to address his own people, this admonition may have been aimed at himself. ⁶ He was by then 84 years old; so, in 1945, when the judicial proceedings started against him, he was nearly 90. He died bedridden and exiled, “the oldest prisoner of the world”. Pétain’s corpse was not subjected to an autopsy, and the diagnosis of dementia (probably Alzheimer’s) remains controversial.^5,7 Famous and exposed largely to the public due to his high official position, Pétain’s behavioural changes and bizarre attitude, particularly from 1940 onward, are well-documented. ⁷

Was Marshal Petain fit for trial by the end of the war? Should he have been charged and sentenced as he was? Some sources suggest that during the hearing, he dozed and did not even realise what was happening. ⁸ The general public were looking for a “head”; they felt resentment and anger due to Pétain’s collaboration with the Nazis; however, he had many supporters and sympathisers. But in truth, was the court trying and judging a man who was, due to his cognitive deficit, unable to understand the events and the occurrence?

This dilemma is not unique and indeed French neurologists have scanned other politicians’ medical states. ⁹ Acknowledging that a person could be held criminally accountable whatever his age while trying to hide behind legal immunity, the Chilean General Pinochet and his legal team prepared in advance for such a possibility.

A strange syndrome: preemptive psychiatry

When he was arrested in London in October 1998, Pinochet (aged 82) battled to stop his extradition to Spain, arguing he had suspected dementia, while he had in fact flown to the United Kingdom for lower back pain treatment, apparently unaware of the risks.

Promptly, hundreds of lawsuits were filed worldwide. ¹⁰ To ensure impunity and avoid going to court, the psychiatric diagnosis served as an ultima ratio. In 1999, the New York Times termed this “Pinochet syndrome”, which included the following:

ill health;

Pinochet was regularly hospitalised just before any Chilean court started proceedings or sent a subpoena against him well before he was arrested in London. To further complicate the already confusing medical opinion about his health condition, some authors suggested that his diabetes led to multiple (but silent) cerebral infarcts that had contributed to dementia. ¹²

Just in case: a hypothetical trial

The ex-communist Albanian dictator Hoxha died in 1985, throwing the country into deep mourning with Biblical style lamentations. The images of mass crying and screaming broadcast during the funeral of Kim Jong-il in North Korea are not the only examples of such behaviour.^13,14

Notwithstanding, Albania soon moved on and some six years after Hoxha’s death it condemned the communist atrocities committed by his regime. Apart from political issues, some ad hoc bills were approved, and former high-ranking figures of the communist party were taken into custody, tried and given long jail sentences. By then, the older among them were approaching their 80 s, with some even in their 90 s. However, their misdeeds were judged within the legal framework of the crime of genocide, which was excluded from any statute of time limitation.^15,16 All of them pleaded not guilty. Curiously, none requested psychiatric expertise to test their mental health to support a plea that they were not competent and fit for trial, not even to mount an insanity defence in a clear case of dementia, in stark contrast to Pinochet and his legal team who preferred a psychiatric diagnosis to prison.

What would have happened if Hoxha himself had been alive after Die Wende and the communist fall in Eastern Europe? His Romanian homologue was shot by an execution squad. Hypothesising what might have happened at a public trial carried out posthumously is very speculative.

Enver Hoxha was ailing physically; he suffered from severe diabetes, complications from which led to other medical problems. These were noted from the early 1970 s (myocardial infarction and neuropathy). However, he and his collaborators kept this poor health secret from the people and from foreign ambassadors (those few still residing in Tirana then), and no medical files have been accessible until now. One of his physicians recalls Hoxha's death in April 1985 as a “sudden one”, which was another inconsistency that surrounded the private life of a mortal leader with chronic health problems.

Nevertheless, some authors did report on Hoxha’s mental issues and health problems. In 1981, a few years before his death, Larrabee wrote: ¹⁷

“Even tiny Albania is on the verge of succession. Enver Hoxha, the last of the post-war communist leaders in Eastern Europe, is 78 and ailing …”

He was not the only author or source to suggest that, for a long period, Hoxha was sick and unable to rule. Some even affirm showing him in a wheelchair on television, when in fact the Albanian dictator could not walk independently, at least during his last year of life; however, such images were strictly forbidden to the general public and were only released much later. ¹⁸ While always admitting and beyond all doubts that Hoxha’s mental health was deteriorating in his last years of life, sources also suggest that this might have influenced bilateral relations between Albania and neighbouring countries. ¹⁹ It is clear, however, that the dictator’s mental and general health issues were underreported for his whole life, and 37 years after his death, an objective evaluation is still not feasible. ²⁰ Some video footage from a registered meeting in February 1985 have shown Hoxha deeply confused, misspelling words, and mixing up years and time, which is a clinical sign of dementia, hypoglycaemia, or other problems affecting mental clarity, but their precise cause is as yet unknown. ²¹ All chances are that should he had survived until the regime change in 1991, six years after his death, any criminal state trial would have held him accountable and sentenced him (like Pétain in France in 1945).

Discussion

Ageing adults with mental health problems who are held in custody are becoming an issue of concern with their care commonly shifted away from general psychiatry to geriatric. There is increasing awareness that their needs when confined inside pre-detention or correctional facilities may be different from those of younger adults.^22,23

From a legal and ethical perspective, several concerns regarding the justification of imprisonment for octogenarians and older adults have been formulated. ²⁴ Custody and detainment would serve rehabilitation (societal, not medical), deterrence from further offending, connection with correct values, and comply with a handful of other philosophical or penal norms. ²⁴

An ageing population affects society as a whole with an increasing number of leaders and heads of state wanting to govern for longer, if not in perpetuity. Some will continue in office while they become increasingly incapable with their incompetence concealed by those around them for their own purposes. Or they may be outed by a coup d’état leading to instability. It is the normal process of handing over power that enables government to run smoothly. In his paper, Förstl counts a score of heads of state aged over 80, some older than 90, who are still in power and reluctant to retire. ²⁵

It is important that psychiatry is prepared to deal effectively with older adults suffering from dementia while held in custody or facing a jail sentence. A subset of criteria applicable to other patients may be of little help within a correctional facility such as a prison. Earlier diagnosis of dementia and prodromal cognitive disorders may improve care and safeguard the dignity and legal rights of patients whose wrongdoings or misdeeds are undergoing trial while they are incapable of understanding this.

The cases of Pétain, Pinochet and Hoxha differ not only in their historical background but in their outcomes; they are connected only by the suspicion of a dementia diagnosis. Petain died in prison while suffering from severe dementia, the Chilean General remained in hiding and out of reach of his prosecutors after the presumption of dementia was put forward, while the Albanian dictator died with severe cognitive deficit and was not held accountable for his crimes while alive.

In all three cases, medical professionals failed to clearly define the mental health issues of their patients. Their failure or complicity or reticence to speak up may have been due to fear or subordination to the political figures concerned and other political pressure even when cases came for trial.